How migrant law will affect Arizonans

Kris Kobach is a University of Missouri-Kansas City law professor and advocate for strengthening local law enforcement's response to illegal immigration who helped write the legislation.

Gabriel "Jack" Chin is a University of Arizona law professor and constitutional-law expert who has spent years crafting other bills and thinks this law is poorly written.

Both took time Wednesday to answer questions about the legislation's practical impact on Arizonans.

Question: The law makes it a crime to conceal, harbor or shield an illegal immigrant. If I give a co-worker or student a ride home and an officer discovers the passenger is an illegal immigrant, can I be charged?

Answer, Kris Kobach: No. It's the same as in federal law: The person must know and recklessly disregard the fact that the person is an alien. The intent of the statute makes reference to transporting in furtherance of illegal presence. It's not just incidental or casual transporting.

Answer, Jack Chin: No, so long as you're not in violation of another law. And it's already a federal criminal offense to transport somebody who you know is an illegal alien, so it's not free from risk now.

Q: The law creates a charge of "willful failure to complete or carry an alien-registration document" for illegal immigrants. Do I need to have my ID card on me at all times in case an officer suspects I'm in the country illegally?

Kobach: This law does not require a U.S. citizen to carry any documentation. It's a crime under federal law to falsely assert U.S. citizenship. If the person merely asserts that he is a U.S. citizen, that's good enough. The false assertion of U.S. citizenship is a crime that carries a heavy penalty in federal law.

Chin: If the person was born in Mexico and doesn't have satisfactory identification, I would think there is probable cause to arrest that person for violation of this section: There is evidence they are not a U.S. citizen (foreign birth), they do not have any evidence they are authorized to live in the United States. . . . I would say the answer is: If you look Mexican or Hispanic or Asian or Black, then you should carry ID because there's already some evidence that you could fall into this category.

Q: What constitutes "reasonable suspicion" that a person might be in the country illegally?

Kobach: Reasonable suspicion requires more than one factor. An example might be an individual traveling on a corridor known for alien smuggling and the fellow occupants in the vehicle are known to be unlawfully present in the United States. Merely being in a neighborhood where (drophouses) exist wouldn't be a factor in reasonable suspicion. Courts would be very reluctant to say everybody in this neighborhood already has one factor because they live there.

Chin: If the offense at issue is whether you're undocumented, the Supreme Court has said race is permissible (as a factor). If police see someone speaking Spanish, who appears to be Mexican, is in a Mexican neighborhood, they know from other situations this is a neighborhood where a high number of people are undocumented, that certainly looks like a basis to inquire.

Q: Does the law allow local law enforcement to determine a person's legal status?

Kobach: No. The federal government does.

Chin: It's unclear. But it's pretty clear that the cops at least on the street are making the (initial) determinations, and that I don't think is particularly problematic. Local law enforcement has always been able to deal with the felonies, like re-entry after deportation. From a criminal-law perspective, the cop makes a determination of whether the white powder is heroin or how fast you're going. But (immigration status) is sufficiently complicated and not within the ordinary experience of law-enforcement officers.